Key Benefits:
Paris, 6 August 2002.
The Seal Guard, Minister of Justice, to Ladies and Gentlemen Attorneys General at the Courts of Appeal, Ladies and Gentlemen Attorneys of the Republic at the High Courts of Appeal (for attribution); Ladies and Gentlemen, First Court of Appeal Presidents, Ladies and Gentlemen, Presidents of High Courts of Appeal (for information)
In accordance with the tradition of the Fifth Republic, the Parliament has just passed, on the occasion of the re-election of the President of the Republic, an amnesty law for certain acts committed before 17 May 2002.
Given the priority given by the Government to the fight against insecurity, and the need to reconcile this manifestation of forgiveness expected by a large number of our fellow citizens with the effectiveness of the repression, this law is much smaller than previous ones.
Thus, in relation to the amnesty law of 3 August 1995, the legislator significantly increased the list of offences that, because of their seriousness or because their repression constitutes a criminal policy priority, are excluded from amnesty. In addition, the threshold of amnesty known as "quantum" for suspended sentences was set at six months, instead of nine months as was the case in 1995.
On the form, the presentation of the law is, in relation to the amnesty law of 3 August 1995, simplified and made more consistent, in order to make it more accessible to the vigilantes. The law is thus divided into six chapters, respectively devoted to amnesty of law, amnesty by individual measure, amnesty of disciplinary or professional sanctions, exclusions of amnesty, effects of amnesty and overseas.
1. Law amnesty (arts. 1-8)
Chapter I on the amnesty of law is introduced by an article 1 which first sets out the date of effect of the amnesty: the amnesty applies to the facts committed prior to 17 May 2002, the date of the beginning of the term of office of the President of the Republic. This effective date is obviously identical for amnesty by individual measure and amnesty related to disciplinary or professional sanctions.
Article 1 also recalls the distinction between amnesty by nature and amnesty to quantum, as well as the existence of exclusions from amnesty, by referring to Article 14 of the law which sets out the list.
Finally, this article states that amnesty benefits individuals and legal persons. In this regard, it may be specified that where the nature or amount of the penalty in question constitutes the amnesty criterion, the penalty or penalties incurred by natural persons must be taken into account in determining whether the amnesty applies, including in respect of legal persons.
1.1. Amnesty due to the nature of the offence
(arts. 2, 3 and 4)
1.1.1. Amnesty due to the nature of the offence (art. 2)
The list of offences excluded as a result of their nature is identical to that contained in the 1995 Act, but some of these offences must be taken into account with certain exclusions provided for in section 14 of the Act.
Thus, there are amnesties of police contraventions and large-scale passenger contraventions (1° of section 2).
The amnesty of the law of contraventions is, however, limited by the exclusion, by section 14 of the law, of numerous contraventions (the fifth class contraventions committed in a state of legal recidivism, most of the contraventions of the road code, certain breaches of the regulation of road transport, involuntary breaches of the integrity of the person committed in connection with the conduct of a vehicle or
The law also deals with certain categories of offences because of the nature of the litigation concerned or the penalty incurred. These categories are identical to those provided for in the Act of 3 August 1995. This is:
- offences punishable only by fine, excluding any other penalty (2nd of Article 2); provided that one or more additional penalties are incurred, the offence is therefore not amnesty on this basis;
- press offences (3rd of Article 2), with the exception of press offences excluded from amnesty by Article 14: offences of apology of war crimes, crimes against humanity and crimes and offences of collaboration with the enemy, of apology or provocation to acts of terrorism, of provocation to discrimination, violence or racial hatred, of revisionism, defamation
At last, some violations of the Code of Military Justice and the Code of National Service are amnested; the condition of regularization provided for in 1995 for some of these offences is maintained, as a result of the suspension of the national service, only in respect of the offences of desertion committed by a career soldier or serving under a contract, for which it is required that the perpetrator of the facts voluntarily submit to the competent military authority before 31 December 2002 (4th of Article 2).
1.1.2. Amnesty due to circumstances
of the commission of the offence (art. 3)
Article 3 provides, as it is traditional, the amnesty of offences committed in special circumstances that justify a measure of appeasement contributing to national cohesion, unless it is the most serious offences, punishable by a ten-year sentence of imprisonment.
Such amnesty:
- the offences committed, including during public demonstrations or in public places, in the event of labour conflicts or in the event of trade union activities and resale of employees, public officials or members of liberal professions (1° of Article 3);
- offences committed in connection with conflicts relating to the problems of teaching or offences relating to the reproduction of works or to the use of software for educational and non-profit purposes (3rd of Article 3);
- offences related to industrial, agricultural, rural, artisanal or commercial conflicts, including during public or public events (4° of Article 3);
- offences committed in relation to elections of any kind, except those in relation to the direct or indirect financing of election campaigns or political parties (5th of Article 3);
- offences in relation to the defence of the rights and interests of French repatriated overseas (6° of Article 3).
The amnesty provided for in Article 3, however, intervenes only subject to the exclusions provided for in Article 14, including the exclusion of violence against persons held by the public authority or charged with a public service mission, and aggravated degradation, destruction or deterioration (27° and 34° of Article 14).
As indicated in section 3, when it intervenes after the conviction, the amnesty of full rights provided for in this article must be found by the public prosecutor or at the request of the persons concerned, this finding, in particular, allowing the deletion of the record of the criminal record.
He will therefore return to the Public Prosecutor's Office, acting on his or her behalf or upon request, to find out the amnesty of these convictions and to notify the national criminal record's office in order to eliminate the mention of the amnesty's conviction.
The decision of the Public Prosecutor ' s Office may be contested by a request filed with the President of the Court or the Court who has rendered the decision in accordance with the procedure provided for in article 778, paragraphs 2 and 3, of the Code of Criminal Procedure in the matter of rectification of usurped identity.
The 2nd of Article 3, which is the result of a parliamentary amendment, also provides for the amnesty of the illegal practice of medicine committed in the course of the practice of osteopathy or chiropraxia activity by professionals who meet the conditions of practice set out in Act No. 2002-303 of 4 March 2002 on the rights of the sick and the quality of the health system. The Parliament considered that the consecration of this profession by the Act of 4 March 2002 justified the amnesty of persons who had been convicted in the past for the illegal exercise of medicine, even though they met at the time the conditions of diploma required by the new texts, so that the persons concerned should justify to the prosecutor of the Republic if they ask to benefit from amnesty.
1.1.3. Condemnation for multiple offences (art. 4)
Section 4 - of which a similar provision was found in the 1995 Act - specifies the conditions of amnesty in the event of conviction for multiple offences, one of which is amnesty of full right under sections 2 or 3. In this case, the convicted person is amnesty if the offence is legally punishable by the highest penalty or a penalty equal to the other offences (unless one of these offences is excluded from amnesty under the provisions of Article 14).
1.2. Amnesty due to quantum
or the nature of the penalty
1.2.1. Amnesty of fines
(art. 5)
As in 1995, the offences that have been or will be punished with fines or fine days are amnested by Article 5.
However, as also provided for in the 1995 law, if the fine is greater than EUR 750, the amnesty is acquired only after the payment of the fine or, in case of non-payment, the execution of the constraint by body or, for the fine day, the prison sentence corresponding to the unpaid portion of the fine (as specified that the execution of the constraint by body, however, if For penalties imposed in francs before 1 January 2002, the threshold of the fine from which amnesty is subordinated to the payment of the fine results from the conversion of the sum of EUR 750, i.e. 4,920 F, which is therefore very slightly lower than the threshold of 5,000 F retained by the 1995 law. However, it should not result in an aggravation of the situation of convicted persons, the courts do not impose fines between 4,920 and 5,000 F in practice.
1.2.2. The amnesty of prison sentences or sentences imposed in place of imprisonment (art. 6)
Article 6 provides for the amnesty of offences that have been or will be punished by certain prison sentences, or certain penalties imposed in place of imprisonment.
First, as in 1995, offences punishable by a firm or suspended sentence of imprisonment with probation of less than or equal to three months (1° and 2° of Article 6).
These are then offences punishable by imprisonment with a single stay of less than or equal to six months, instead of nine months as in 1995 (3rd of Article 6).
Pursuant to the 4th of Article 6, offences punishable by imprisonment with a suspended sentence of more than three months and not exceeding six months shall be amnestied when the sentence has been declared an invalid or the convicted person has completed the trial period without a decision ordering the revocation of the stay.
Pursuant to the 5th of Article 6, sentences to a suspended sentence of imprisonment with the obligation to perform a general interest work are amnested if they are less than or equal to six months, amnesty intervenes only after the execution of the GRT. This regime is more severe than that established by the amnesty law of 1995, which provided for the condition that the TIG was executed only, as in the case of a stay tested, when the quantum was more than three months.
This evolution in relation to the 1995 law is justified by the fact that the amnesty of general interest sentences imposed as an alternative sentence remains, as in 1995, subordinate to the completion of the work, while a stay-TIG is in practice a more severe penalty than an alternative TIG-peine. It is therefore essential that the criminal record be informed without delay of each performance of a work of general interest, whether it has been pronounced as a modality of a stay or as a principal. Of course, as the 1st of Article 6 specifies, in the event of non-execution of the TIG leading to the revocation of the stay, the firm punishment that will result from the revocation will not be amnesty to the quantum, even if it is less than or equal to three months: if this exception to the amnesty to the quantum of the firm sentences had not been instituted, the condition of execution of the TIG for suspended sentences equal to
The 6th of Article 6 provides that mixed sentences are amnested when the firm part is less than or equal to three months and that the entire sentence is less than or equal to six months, subject to the same reservations as those provided for in the 4th for stays with probation.
Finally, the 7th, 8th and 9th of Article 6 have been amnestied by the following offences, pronounced instead of the main sentence of imprisonment (see, in some cases, fine):
- a general interest sentence imposed as a principal sentence, subject to, as in 1995, the full execution of the sentence;
- alternative penalties of section 131-6 of the Criminal Code, with the exception, which constitutes an evolution in relation to the amnesty law of 1995, penalties for the prohibition of the detention or wearing of weapons, the confiscation of a weapon and the prohibition of the exercise of a professional or social activity provided for in the 6th, 7th and 11th of that article; These three exceptions are provided by consistency with the exclusion of offences from the arms legislation (41° of Article 14) and with the absence of an amnesty effect on these penalties when they have been imposed as additional penalties (art. 16).
- additional penalties imposed as a principal penalty, except - which constitutes a difference in comparison to 1995 - when it is one of the penalties set out in section 16 of the law (ban of territory, prohibition of residence, prohibition of civil, civil and family rights, prohibition of professional or social activity, measures of demolition, dissolution of the legal person or exclusion of public markets), penalties of which amnesty, under the terms of
The last paragraph of section 6 makes it logical that when amnesty penalties under this section are imposed at the same time as fine or fine days, amnesty is acquired only after the fine is paid if the fine is more than EUR 750.
For the sake of fairness, where the amnesty provided for in Article 6 is subordinated to the expiry of the trial periods or to the completion of the TIG, it will be necessary to suspend the execution of the other penalties imposed by the decision (see footnote 1) and to the recovery of the fixed procedural right, since the amnesty of the entire elements of the conviction is subordinate to the fulfilment of this condition.
1.2.3. Amnesty of sentencing sentences
(art. 7)
As is customary, Article 7 provides that offences that have given or will give rise to:
- a penalty exemption under articles 132-58 and 132-59 of the Criminal Code;
- either to an admonition or to the handover of the minor to his or her parents, guardian or the person who had custody or trusted person, or to the dispensation of any measure, pursuant to the order of February 2, 1945 on child offenders.
1.2.4. General conditions of amnesty to quantum (art. 8)
The legislator has taken over the procedural framework provided for by the amnesty laws since 1981 and relating to the modalities for the implementation of amnesty to quantum: amnesty is in principle acquired only after final conviction (and, in some cases, after execution of the conviction). However, in cases where amnesty is subordinate to the execution of the sentence, in the absence of a civil party and a remedy already exercised, it is acquired from the judgment rendered by default, by iterative default, or by contradictory judgment to be served, without the need to serve the decision to make it final. The person thus benefiting from the amnesty regains the exercise of the remedies if a proceeding for redress is subsequently brought against it. In addition, it may withdraw from remedies to immediately benefit from amnesty.
1.3. Amnesty contestations (art. 9)
The traditional rules on this matter are included in Article 9 of the Act, which provides that disputes are subject to the rules of procedure and jurisdiction set out in the second and third paragraphs of Article 778 of the Code of Criminal Procedure, or by means of a request to the court that rendered the decision.
Specific rules of jurisdiction are provided for non-permanent military courts.
In the absence of a final conviction, disputes are submitted to the competent court to rule on the prosecution.
2. Individual amnesty (art. 10)
Article 10 of the Act incorporates a traditional provision giving the President of the Republic the opportunity to grant amnesty for offences that do not fall within the scope of the amnesty of the right to persons under the age of 21 and to certain categories of persons who have served as a determinant of the general interest (former fighters, resistors, scientists, etc.). Compared to the Act of 3 August 1995, the persons who distinguished themselves exceptionally in the field of sports were added to this list.
As was the case in previous laws, amnesty by individual measure can only be granted if the person has not already been convicted of a crime or offence and if the offence committed is not excluded from amnesty by section 14 of the law.
The application for amnesty must be submitted within one year of the promulgation of the law or the final conviction.
3. Amnesty of disciplinary sanctions
(arts. 11-13)
As in 1995, articles 11 to 13 provide that the acts committed before 17 May 2002, as misconduct punishable by disciplinary or professional sanctions, or that they are held or liable to be held as grounds for sanctions imposed by an employer, are amnesty of full right, under both traditional reservations.
In the first place, when these facts have also resulted in a criminal conviction, their amnesty is subordinate to the amnesty of the conviction (which therefore presupposes that it is not an offence excluded from amnesty by section 14). However, in the event of a criminal conviction, amnesty also applies, which is a novelty in relation to the 1995 law if the convicted person's legal or judicial rehabilitation has taken place. This innovation is justified by the provisions of Article 133-16 of the Criminal Code which provide that rehabilitation produces the same effects as amnesty (in such a case, the amnesty of disciplinary or professional sanctions will play in full right, even if it is facts that could not have been amnested because of the quantum of the sentence imposed or because they were part of the list of exclusions of Article 14).
Moreover, faults constituting breaches of probity, good morals or honour can only be harmed by an individual measure of the President of the Republic. The application for amnesty may be submitted by any interested person within one year of the promulgation of the law or the final conviction.
It should be noted that Article 11 specifies that the disciplinary penalties imposed on students by French educational institutions abroad referred to in Article L. 451-1 of the Code of Education or entering the jurisdiction of the Agency for French Foreign Education referred to in Articles L. 452-2 to L. 452-5 of that Code are included in the amnesty field.
4. Exclusions of amnesty (art. 14)
Exclusions of amnesty, much more numerous than in previous laws, are provided for in section 14 of the law, which contains 49 paragraphs.
As indicated in the first paragraph of Article 14, these exclusions concern both natural persons and legal persons, for offences that may be charged to them.
These exclusions, the order of presentation in section 14 does not correspond to a particular logic (but which is a part of the order of presentation of exclusions contained in the law of 1995), may, however, be grouped in one of the following categories (categories that may however be intersected), as they are based on the usual character of the offence(s) that affect the person's authority
In general, it may be observed that many offences excluded from amnesty are provided for by legislation that has been the subject of, between the previous amnesty law of 1995 and the new law, a codification or recodification (in the road code, the trade code, the public health code, the environmental code, the rural code or the monetary and financial code). In most cases, the legislator has accordingly targeted the former and the new acts of criminalization and/or repression (as in the 1995 Act, which mentioned both the articles of the former and the new penal code). However, even in the absence of a double visa, the exclusions apply that the offences in question have been committed and have given rise to conviction before or after a possible recodification (in addition, for the sake of simplification, it is not referred, in the following developments in this circular, to the repealed criminalization or repression texts, even if they are cited by law).
4.1. Exclusions based on the usual character
Offences
Three exclusions - which did not appear in the 1995 law - are justified by the idea that amnesty cannot benefit a person who commits offences in a reiterate manner.
In this regard, the most significant exclusion is that, as provided for in section 14, of the offences and offences of the fifth class committed in a state of legal recidivism. It should be noted that this exclusion only plays if the person was convicted while the recidivism was targeted.
In the same spirit, the 35th of Article 14 excludes from amnesty the ordinary defect of a title of carriage provided for in Article 24-1 of the Act of 15 July 1845 on the railway police, which is in fact constituted only if the person travels without a title of carriage after having, in the preceding twelve months, committed ten times these same facts.
Finally, the 42nd of Article 14 excludes from amnesty any police contraventions that have been the subject of the opposition procedure to the transfer of the registration certificate provided for in Article L. 322-1 of the road code; this exclusion - which will mainly concern the contraventions of the first class of the road code, as well as certain contraventions of the second class, since the other contraventions of this code are excluded from amnesty, cf infra - participates in the same spirit since this procedure assumes that the person has not declared his or her change of address (which in itself constitutes a contravention), and is applied in practice in respect of several contraventions.
4.2. Exclusions of offences
to the authority of the State or the administration
As is traditionally excluded from amnesty, pursuant to the 1st of Article 14, terrorism offences falling within the scope of Article 706-16 of the Code of Criminal Procedure, even where the facts are preceded by the entry into force of Law No. 86-1020 of 9 September 1986 on the fight against terrorism. It is specified that the reference to article 706-16 also concerns its applicable wording before Act No. 96-647 of 22 July 1996 to strengthen the repression of terrorism, which made the association of criminals in relation to a terrorist company a specific act of terrorism.
The following exclusions were also repeated, which were also planned in 1995, but have sometimes been slightly extended:
- offences relating to electoral fraud under articles L. 86 to L. 88, L. 91 to L. 109, L. 111, L. 113 and the first and second paragraphs of Article L. 116 of the Electoral Code (8° of Article 14);
- offences of irregular residence or assistance in the irregular entry or stay of a foreigner, provided for in articles 19, 21 and 27 of Ordinance No. 45-2658 of 2 November 1945 on the conditions of entry and residence of foreigners in France (14th of Article 14);
- offences of identity usurpation provided for in Article 434-23 of the Criminal Code and, as provided for in the 1995 Act, the offences of the use of titles provided for in Article 433-17 of the Criminal Code (20° of Article 14). It should be noted that all usurpations of titles punishable under Article 433-17 of the Criminal Code, including those relating to regulated professions provided for by specific texts referring to the penalties provided for in this Article, are excluded from amnesty;
- offence of discredit on a judicial decision under article 434-25 of the Criminal Code (28° of article 14);
In order to ensure the protection of officials of the State or of the administration, the 27th of Article 14 finally excludes from amnesty, in addition to the offences of contempt and rebellion committed against persons held by public authorities or charged with a public service mission (including police officials, national gendarmerie officers and magistrates), are also excluded from amnesty the violence and contempt provided for in sections 25 and 26 of the Act of 15 July 1845 on the railway police.
4.3. Exclusions of crime
or organized or violent crime
In addition to the exclusion provided by the 12th of Article 14 of the offences relating to drug trafficking provided for in sections 222-34 to 222-40 of the Criminal Code, which were already excluded by the 1995 law, the legislator considered that amnesty could not apply to the following offences:
- offences of destruction, degradation or aggravated deterioration provided for in sections 322-2, 322-3 and 322-6 of the penal code and offences provided for in article 21 of the law of 15 July 1845 on the railway police and article 73 of Decree No. 42-730 of 22 March 1942 regulating the public administration on the police, the safety and operation of the railways of general interest and the operation of the railways of public interest
- offences of association of criminals provided for in Article 450-1 of the Criminal Code (36 of Article 14);
- offences of laundering provided for in articles 324-1 to 324-6 of the Criminal Code (37° of article 14);
- offences of procuring under articles 225-5 to 225-11 of the Criminal Code (38° of article 14);
- offences relating to false currency provided for in articles 442-1 to 442-8 of the Penal Code (40° of Article 14);
- offences provided for by the decree of 18 April 1939 establishing the regime of war materials, weapons and ammunition (41° of Article 14);
- offences of robbery with violence provided for by the 4th of Article 311-4 and Articles 311-5 and 311-6 of the Criminal Code (49th of Article 14); It should be noted that, of course, flights committed with several aggravating circumstances are excluded from amnesty, including violence.
4.4. Exclusions of offences
economic or financial matters
The desire to moralize economic and financial relations, including when they relate to the activities of the public power, has led the legislator to anticipate many exclusions, some of which are traditional and others are innovations.
The 4th of Article 14 thus excludes from amnesty the offences of concussion, unlawful taking of interest and favouritism, as well as of corruption and trafficking of influence, including, which constitutes an innovation justified by Act No. 2000-595 of 30 June 2000, in European or international matters, provided for in Articles 432-10 to 432-14, 433-1, 433-2, 433-335
This section also excludes, which was not provided for in the 1995 law, the offences of falsehood provided for in sections 441-1 to 441-4, 441-9 and 441-12 of the Criminal Code.
The 5th of section 14, of which there was no equivalent in the 1995 Act, excluded from amnesty the following offences:
- the offences of abuse of social property provided for in sections L. 241-3, L. 242-6, L. 242-30, L. 243-1, L. 244-1 and L. 247-8 of the code of trade as well as articles L. 231-11 of the monetary and financial code for civil companies making public use of savings, L. 328-3 of the insurance code for insurance companies, July 22-5 of the law
- the offences of bankruptcy by diversion of assets provided for in articles L. 626-1 to L. 626-5 of the code of trade and recel of assets diverted under articles L. 626-10 and L. 626-12 of the code of trade: it is the result of the drafting of this provision that are excluded from amnesty only the offences of bankruptcy resulting from diversion (detourment-2) embezzlement or recel of the assets of the debtor by a parent or ally provided for in Article L. 626-10; abuse of the debtor's assets under Article L. 626-12 (II); other bankruptcy assumptions, as in the case of use of ruinous means or irregular accounting, are therefore not excluded from amnesty;
- simple or aggravated breaches of trust provided for in articles 314-1 to 314-12 of the Criminal Code; it should be considered that, despite the reference to all sections of Chapter IV of Title I of Book III of the Criminal Code, only offences of abuse of trust, expressly mentioned by law and which are provided for in Articles 314-1 to 314-3, are excluded from amnesty; Moreover, the abuse of special trust provided by specific texts is not excluded from amnesty, although these texts sometimes refer to the penalties set out in article 314-1.
7th of Article 14 incorporates the provisions of the Act of 1995 excluding from amnesty counterfeitings and other offences in respect of infringement of the rights of intellectual property provided for in Articles L. 335-2 to L. 335-5, L. 521-4, L. 521-6, L. 615-12 to L. 615-16, L. 623-32, L. 623-1216, L. As in 1995, this exclusion was enacted subject to the provisions of the 2nd of Article 3, granting full rights to teachers who had been able to commit such offences.
As in 1995, are also excluded from amnesty:
- infringements of legislation and regulations in customs, tax and financial relations with foreign countries (13th of Article 14);
- offences relating to freedom of price and competition provided for in articles L. 420-6, L. 441-3 and L. 441-4 of the Commercial Code (24° of Article 14);
- the offence of exchange - and especially the offence of initiation - by articles L. 465-1 and L. 465-2 of the monetary and financial code (25° of Article 14).
Finally, it should be noted that the 46th of Article 14 excludes from amnesty, in order to moralize the financial position of Paris, the facts that have given rise or that will give rise to disciplinary or professional sanctions imposed by the Banking Commission, the Commission on Exchange Operations, the Council of Financial Markets, the Council of Discipline of Financial Management, the Commission for the Control of Insurance and the Commission for the Control of Mutual Insurance Institutions. This exclusion, which does not relate to criminal offences, is of interest only in the amnesty of the professional or disciplinary sanctions provided for in section 11 of the Act, to the extent that the aforementioned bodies are liable to impose such sanctions (disistinctive of administrative sanctions which, in any event, do not enter the amnesty field).
4.5. Exclusions of offences against dignity
of the person, personality or family
As in 1995 are excluded from amnesty:
- the offences of discrimination provided for in articles 225-1 to 225-3 and 432-7 of the Criminal Code and L. 123-1, L. 412-2 and L. 413-2 of the Labour Code (2nd of Article 14);
- the offences of apology of war crimes, crimes against humanity and crimes and offences of collaboration with the enemy provided for in the fifth paragraph of Article 24 of the Law of 29 July 1881 on freedom of the press, as well as the offences of negationism and racial defamations provided for in the sixth paragraph and in the eighth paragraph of the same Article, by Article 24 bis, by the second paragraph
- the offences of violation of sepulture provided for in articles 225-17 and 225-18 of the Criminal Code, as well as the offences constituted by the degradation of monuments elevated to the memory of combatants, shot, deported and victims of war (19° of Article 14);
The offences constituted by an infringement of the rights of persons resulting from the creation of files or the use of computer processing, as provided for in articles 226-16 to 226-23 of the Criminal Code, are also excluded by the 31st of Article 14.
The following offences are also excluded, which did not exist in 1995 or whose contours have been extended since that date:
- offences of sexual harassment and moral harassment provided for in articles 222-33 and 222-33-2 of the Criminal Code (11° of Article 14);
- offence of fraudulent abuse of the state of ignorance or weakness provided for in article 223-15-2 of the Criminal Code and article 313-4 in its applicable drafting prior to the Act of 12 June 2001 on sectarian movements, which extended this criminalization to strengthen the effectiveness of the fight against such movements (30° of article 14);
- offences of recourse to prostitution of a minor under sections 225-12-1 and 225-12-2 of the Criminal Code, created by the Act of 4 March 2002 on parental authority (33° of Article 14).
Finally, to the exclusion, already provided for in 1995, of the offences of abandonment of the family provided for in articles 227-3 and 227-4 of the Criminal Code (6° of Article 14), has been added the exclusion of the offences of subtraction of children aggravated by the fact that the child has been detained beyond five days or outside the territory of the Republic, provided for in Article 227-9 of the Criminal Code (39° of Article 14).
4.6. Exclusions of offences under environmental law and animal protection or regulation
As in 1995, are excluded from amnesty the property offences provided for by the Act of 31 December 1913 on historical monuments or defined by articles L. 313-1 to L. 313-3 of the urban planning code and repressed by articles L. 313-11 and L. 480-4 of this code (22° of Article 14) (see note 2).
The 23rd of Article 14 also excludes all the offences provided for in the Environmental Code and the applicable legislative provisions before the entry into force of Order No. 2000-914 of 18 September 2000 relating to the Legislative Part of the Environmental Code and which were repeated in this Code from that date, as well as the contraventions of the fifth class provided for in the texts taken under Book V. This exclusion is broader than that of 1995, which concerned only some of the offences that have since been incorporated into the environmental code (see footnote 3) , and which did not cover the offences. As the Regulations of the Environmental Code have not yet been codified, the contraventions of the fifth class excluded from amnesty are, in particular, the contraventions of facilities classified by Decree No. 77-1133 of 21 September 1977, in respect of chemicals (PCB) set out in Decree No. 87-59 of 2 February 1987, in respect of wastes set out in Decree No. 90-267 of 23
In respect of the protection and regulation of animals, are excluded by the 48th of Article 14 the serious abuse or cruelty to an animal provided for in Article 521-1 of the Criminal Code, and by the 47th of Article 14 the offences of detention, absence of declaration or trade of certain dogs and training of dogs outside the framework defined by the law provided for in Articles L.64 215-1 to L. 215-11 of the Decree.
4.7. Exclusions of offences
the integrity of the person or endangering the person
These exclusions, which are the largest of those provided by the legislature, are significantly higher than those adopted in 1995. Extensions in relation to the previous amnesty law are justified both by the concern for greater coherence in the chosen choices and by the desire for better protection of the person against the various intentional or non-intentional attacks, of which it can be the object and against the behaviours that endanger it.
4.7.1. Offences of a sexual nature
against minors or vulnerable persons
Firstly, it is excluded from amnesty by the 3rd of Article 14 that voluntary offences against the physical or psychological integrity of a 15-year-old minor - which was already the case in 1995 - or of a particularly vulnerable person - which constitutes an innovation - as provided for by articles 222-8, 222-10, 222-12, 222-13 and articles 222-14 and 222-14. It should be noted that the administrations of pests repressed by section 222-15 are excluded from amnesty only when committed against minors aged 15 or particularly vulnerable. In addition, there are, of course, excluded from amnesty the violence committed with several aggravating circumstances, when among them the commission on a 15-year-old or vulnerable person.
Also excluded by the 29th of Article 14 are offences of a sexual nature or committed against minors referred to in Article 706-47 of the Code of Criminal Procedure, namely (in respect of offences that would have been the only ones liable to be amnested to the quantum), sexual assaults, sexual exposure, corruption of a minor, dissemination of the pornographic image of a minor, dissemination of pornographic messages 27
These exclusions, which were not provided for in 1995, reflect the legislator's desire to combat as effectively as possible the various forms of sexual offences, which cause victims a particular serious injury. They are also justified by the need to keep in the criminal record persons convicted of such acts references to their convictions, whose knowledge by the competent authorities may be in such a way as to limit the risk of recidivism. The exclusion of these offences also explains why it was not necessary, in the effects of amnesty provisions, to provide that amnesty would not result in the handover of the socio-judicial follow-up measure that could have been imposed against these offenders.
4.7.2. Road traffic offences
The fight against road insecurity, which is one of the main priorities of the Government, has led to the prediction of exceptions to amnesty far more numerous than in the past.
As in 1995, the offences of involuntary harm to the life or integrity of the person and of risks to others under sections 221-6, 222-19, 222-20, 223-1, are excluded from the amnesty, as in 1995; are also excluded from involuntary breaches of the integrity of the person provided for in sections R. 625-2 and R. 625-3 of the Criminal Code committed in connection with the conduct of a vehicle, which was not the case in 1995.
With regard to the offences provided for by the road code, 10° of Article 14 excludes as in 1995 all the offences of this code, including the offence of leakage.
However, all contraventions of the fifth, fourth and third classes provided for in this Code are also excluded, as well as the contraventions of the second class of the road code relating to the conduct or equipment of the vehicles. As a result, all contraventions leading to a point withdrawal from the driver's licence are excluded from amnesty, which made it unnecessary, contrary to what had been foreseen in 1995, to maintain the withdrawal of amnesty points of contravention.
In the case of annoying stop or parking, are also excluded the contraventions of the second class according to the 1° to 4° and 6° to 9° of the II and 2° of the III of Article R. 417-10 of the road code.
These contraventions correspond to stops or disturbing parking:
- on pavements and passages or accotements reserved for pedestrian traffic;
- on the spaces reserved for public passenger vehicles, taxis or vehicles assigned to a public service;
- between the edge of the road and a continuous line;
- masking traffic lights or signage signs;
- on bridges, in underground passages, tunnels and under the upper passages;
- near fire hydrants and access to underground installations;
- on sites reserved for persons with disabilities;
- double-file (see note 4) .
Similarly, offences relating to the transport of dangerous goods under Act No. 75-1335 of 31 December 1975 relating to the suppression of offences in public and private transport are excluded.
of goods in the field of transport by road, in the 17th of Article 14 of the Council of 20 December 1985, in the case of the regulation of the goods in the field of transport by road, and in the case of the goods in the field of transport by road,
4.7.3. Occupational safety offences
As in 1995, the 32nd of section 14 excludes, where committed by an employer or his representative because of breaches of his or her obligations under the provisions of the legislation and regulations of work in the area of workers' health and safety, offences of involuntary breaches of life or integrity of the person and of risks to others under sections 221-6, 222-19, 222-20,
However, were added in relation to the 1995 Act, on the one hand, the involuntary breaches of the integrity of the person provided for in sections R. 625-2 and R. 625-3 of the Criminal Code when they result from an accident of work (like what was planned for traffic accidents), and on the other hand, the offence of non-compliance with the applicable regulations in respect of work-2
The 15th of Article 14 also includes the exclusion of the offences relating to the trade, concealed work, the introduction or use of foreign labour and the obstacle to the fulfilment of the duties of an inspector or labour controller provided for in Articles L. 125-1, L. 125-3, L. 152-3, L. 3641-1, L. 362-6-2.
Offences to the exercise of the right to organize, to the law and to the regulation of institutions representative of personnel in the enterprises and to the law and regulation of committees of hygiene, security and working conditions, as provided for in sections L. 481-2, L. 482-1, L. 483-1 and L. 263-2 of the Labour Code shall be excluded only if
4.7.4. Public health offences
As in 1995, the 26th of Article 14 excludes from amnesty the offences of intrusion to the voluntary interruption of pregnancy and the unlawful interruption of pregnancy provided for in articles L. 2222-2, L. 2222-4 and L. 2223-2 of the Public Health Code and articles 223-10 to 223-12 of the Criminal Code.
L'21° de l'article 14 finally resumes, in a slightly extended form compared to 1995, the exclusion of the offences of unlawful exercise of certain health professions (physicist, surgeon-dentist, pharmacist, pedicure-podologist, masseur-kinesi, occupational therapist, psychomotrician, manipulator of medical electro-radiology) - which was already provided in 1995 - or d'us The exclusion of the illegal practice of medicine is, however, enacted subject to the amnesty of law of convictions against chiropractors or osteopaths by the 2nd of Article 3.
4.7.5. Sports offences
Two new series of exclusions are provided by the 43rd and 44th of Article 24, which in the field of sport tend to ensure the safety of spectators or athletes.
Firstly, offences that violate the safety of sporting events referred to in sections 42-4 to 42-11 of Act No. 84-610 of 16 July 1984 relating to the organization and promotion of physical and sports activities are excluded. It should be pointed out that this exclusion also includes the offences of violence or degradation committed in stages and for which, pursuant to section 42-11 of the 1984 Act, the additional penalty for a prohibition of the stage (and even if this penalty has not been imposed by the court). This new exclusion explains why it is no longer planned, as in 1995, that amnesty does not result in the surrender of this additional penalty, such an exception to the effects of amnesty having become irrelevant.
Offences for dopent products under articles L. 3633-2 to L. 3633-4 of the Public Health Code are also excluded.
5. Effects of amnesty
5.1. Effect of convictions
and extinction of public action
Article 15 recalls the traditional effects of the amnesty law, with part referring to the perennial provisions contained in the penal code or the criminal procedure code.
It states that the amnesty erases the convictions pronounced or extinguished public action by taking the consequences provided for in sections 133-9 to 133-11 of the Criminal Code and 6 and 769 of the Code of Criminal Procedure, subject to the other provisions provided for in chapter V of the Act that are complete or limit the effects of amnesty to those provided for in these articles.
It follows, in particular, in accordance with the provisions of section 133-9 of the Criminal Code, that the amnesty restores the perpetrator or accomplice to the offence in the benefit of the stay that had been granted to him in a previous conviction. In this regard, it must be noted that, in the interests of simplification and contrary to what was retained by the 1995 Act, there is no exception to this rule for prison sentences with probation or with the obligation to perform work of general interest.
Similarly, in accordance with the provisions of section 133-10 of the Criminal Code, it is prohibited for any person who, in the performance of his or her duties, has knowledge of criminal convictions or amnesty sanctions to recall the existence of such convictions in any form or to allow them to remain in any document. As is traditional, this prohibition is supplemented by the creation of a criminal offence, article 16 providing that any reference to an amnesty sanction or conviction is punishable by a fine of EUR 5,000; legal persons may be criminally responsible for this offence.
As in 1995, the law specifies the provisions of section 133-9 of the Criminal Code stating that amnesty entails, without restitution, the surrender of penalties and police and security measures, with the exception of those to which it draws, in section 16, a limiting list.
Article 16 also states that amnesty hinders the recovery of the fixed procedural right referred to in Article 1018 A of the general tax code.
Finally, section 22 of the law extends the effects of amnesty to convictions by foreign courts but registered in the national criminal record, which will have to cease to be mentioned if they relate to offences of the same nature as those in the amnesty field.
5.2. Limitations to the effects of amnesty
These limits, which are mostly traditional, are contained in articles 16 to 21.
Section 16 states that the amnesty does not result in the restitution or restoration of administrative authorizations cancelled or withdrawn by the conviction, and that it does not impede the repair of damage to the public domain.
It further states that amnesty does not result in the delivery of certain additional measures or penalties, that the national criminal record services will therefore be allowed to retain, with the registration of decisions by which these measures or penalties have been pronounced.
This is:
1° From personal bankruptcy or other sanctions provided for under Part VI of Act No. 85-98 of 25 January 1985 relating to the judicial recovery and liquidation of enterprises in its applicable drafting prior to the entry into force of Order No. 2000-912 of 18 September 2000 on the Legislative Part of the Commercial Code and to Articles L. 625-2 and following of that Code;
2° The prohibition of French territory against a foreigner convicted of a crime or offence;
3° From the ban on stay for crime or offence;
4° The prohibition of civil, civil and family rights for crime or offence;
5° Prohibition of the exercise of a professional or social activity for a crime or offence;
6° Demolition, compliance and rehabilitation measures;
7° The dissolution of the legal person under section 131-39 of the Criminal Code;
8° Exclusion of public procurement under section 131-34 of the Criminal Code;
9° Prohibition of holding or carrying a weapon subject to authorization;
10° Forfeiture of one or more weapons of which the convict is the owner or of which he has the free disposition.
It must be observed that this list, which is wider than in 1995 (therefore were not the penalties set out in 5°, 9° and 10°), has a limiting character, and that all other measures or penalties resulting from an amnesty conviction must be erased.
Article 16 also provides, as in 1995, that amnesty remains without effect on the measures imposed by the application of articles 8, 15, 16, 16 bis, 19 and 28 of Ordinance No. 45-174 of 2 February 1945 on child offenders.
Sections 17 to 21 contain classic amnesty provisions, including the absence of law reinstatement in grades and jobs as well as in decoration orders and the lack of effect of amnesty on the rights of third parties.
It should be noted the provisions of the last paragraph of Article 17 which provides that notwithstanding any provision contrary to amnesty does not preclude the retention in a judicial police file of references to amnesty offences. This precision - justified by the fact that such a file does not contain any mentions relating to convictions, but only to facts found - which may or may not result in prosecutions and convictions - and that amnesty does not erase the facts themselves - thus renders the provisions of Article 3 of Decree No. 2001-583 of 5 July 2001 relating to the system of treatment of offences found, said
Similarly, Article 18 states that amnesty is without effect on the procedure of civil dissolution of certain legal persons provided for in Article 1 of Law No. 2001-504 of 12 June 2001 to strengthen the prevention and punishment of sectarian movements that infringe on human rights and fundamental freedoms by specifying that, notwithstanding the provisions of Article 15, for the implementation of this procedure, a reference may be made to the amnesty This is an important exception, although limited to a specific object, to the removal of convictions resulting from amnesty, which was deemed essential to prevent amnesty from obstructing the civil dissolution procedure of a sect established by the law of 12 June 2001.
Finally, section 19 states that the amnesty of the defect in the title of carriage resulting from the 1st of section 2 is without effect on the application of section 24-1 of the law of 15 July 1845 on the railway police repressing the ordinary defect in the title of carriage. It should be noted, however, that the usual defect in the title of carriage does not require, in order to be constituted, that the ten contraventions previously committed have been prosecuted and convicted, the amnesty of these contraventions, therefore without consequence, on the characterization of the offence.
6. Application of overseas amnesty
(arts. 23 and 24)
In accordance with the provisions of Chapter VI of the Act, amnesty is applicable overseas, subject to certain modifications planned for the departmental community of Mayotte, New Caledonia, French Polynesia and the Wallis and Futuna Islands.
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This law is thus a measured and balanced text, in accordance with the humanistic values that characterize amnesty laws, while being limited in its scope for efficiency and to take into account the contemporary evolution of our society.
I should be grateful if you could see any difficulties you might encounter in the application of this law and in the implementation of these instructions.
I also tell you that a technical note will be sent in the coming days to the courts that will also receive by computer support, with the update of the applications concerned, the NATINF lists of the offences amnesty-affected by nature and the offences excluded from amnesty, these lists should also be posted on the Intranet site of the criminal affairs and pardons management.
Dominica Perben
